Women and Justice: Keywords

Domestic Case Law

Chan Choi Yin v. Toppan Forms (Hong Kong) Ltd. District Court (2006)

Employment discrimination, Gender discrimination

The plaintiff was the defendant’s employee. The plaintiff alleged that the defendant’s management began treating her poorly after her pregnancy, culminating in her eventual dismissal. The plaintiff claimed that the defendant’s actions were prohibited by the Sex Discrimination Ordinance. The court found that management had, among other things, had made derogatory remarks to the plaintiff, reduced her income, compelled her to transfer teams, and failed to investigate her internal complaints about her treatment. The court further found that the plaintiff had showed that, on a balance of probabilities, she had been discriminated against by the defendant’s management on the basis of her pregnancy.



McCauley v. Club Resort Holdings Pty Ltd. Queensland Civil and Administrative Tribunal (2013)

Employment discrimination, Sexual harassment

The complainant worked at the Club Resort Holdings Pty Ltd., the respondent.  She was working in a cold larder preparing food when a colleague sexually harassed her.  The complainant sought an investigation by their employer.  The complainant alleged that the employer improperly conducted this investigation, resulting in further distress for the complainant and her needing to take several months of work.  Ultimately, she resigned.  The complainant also alleged that their mutual employer was vicariously liable for these acts as a result of a failure to take “reasonable steps” to prevent such acts.  The Tribunal awarded damages to the complainant, finding that: (i) the complainant was sexually harassed by her colleague; (ii) the sexual harassment constituted sex discrimination; (iii) the harassment constituted age discrimination; (iv) that the complainant was not victimized by her employers because she brought a sexual harassment complaint; and (v) respondent did not take reasonable steps to prevent the sexual harassment. 



Mapingure v. Minister of Home Affairs Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, Sexual violence and rape

A month after the rape, the appellant’s pregnancy was formally confirmed, she then informed the investigating police officer of her pregnancy who referred her to a public prosecutor. She was told by the prosecutor that she had to wait until the rape trial had been completed to have her pregnancy terminated. At the direction of the police, she returned to the prosecutor’s office four months later and was advised that she required a pregnancy termination order. The prosecutor requested that a magistrate certify the termination. The magistrate said he could not assist because the rape trial had not been completed. She eventually obtained the necessary magisterial certificate nearly six months after the rape, the hospital felt that it was no longer safe to carry out the termination procedure. The appellant carried to full term and gave birth to a child. The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for the physical and mental pain, anguish and stress she suffered and care for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemized. Her claim was dismissed. The questions for determination on appeal were (i) whether or not the respondents’ employees were negligent in responding to the appellant, (ii) if they were, whether the appellant suffered any actionable harm as a result of such negligence and, (iii) if so, whether the respondents were liable for damages for pain, suffering, and the care of her child. The Supreme Court held, on appeal, that the State was liable for failing to provide the appellant with emergency contraception to prevent the pregnancy and ordered it to pay damages. However, the court dismissed the claim that the State was liable for failing to ensure a timely termination of the pregnancy and in turn that they were liable to pay for the care of the child. The case was referred back to the High Court for a determination of the amount of damages.



Niese v. City of Alexandria Supreme Court of Virginia (2002)

Sexual violence and rape

The plaintiff alleged that she was raped several times by a police officer who had been assigned to help her deal with her son’s behavioral issues.  The plaintiff reported the rapes to municipal mental health and domestic abuse entities, and she alleged that these entities violated their statutory duty to report these incidents or take further action.  Consequently, the plaintiff sued the Alexandria Police Department for intentional tort and negligent hiring.  The issue before the Court was whether the sovereign immunity doctrine barred the plaintiff from suing municipal entities for both intentional torts and negligence in failing to act upon plaintiff’s reports and in hiring and retaining the offending officer. The Virginia Supreme Court affirmed the lower court’s dismissal of the action as barred by sovereign immunity, explaining that a municipality is immune from liability for negligence associated with the performance of “governmental” functions, which include maintaining a police force and the decision to retain a specific police officer.  It declined to adopt an exception to sovereign immunity for the tort of negligent retention, as it had done in the context of charitable immunity.  The Court observed that whether a municipality is liable for an employee’s intentional torts was an issue of first impression in Virginia, but the Court relied on Fourth Circuit precedent to conclude that sovereign immunity applies in this context.  Finally, the Court held that the then-applicable statute requiring officials to make a report whenever they have “reason to suspect that an adult” has been “abused, neglected, or exploited” imposed a discretionary duty and not a ministerial duty upon the individuals subject to the reporting requirements and thus dismissed the claim. (i.e., ministerial duties make actions necessary when conditions for their performance arise while discretionary duties make actions optional, subject to the official’s judgment.)



Roches v. Belize Agricultural Health Authority and Attorney General of Belize Supreme Court of Belize (2017)

Employment discrimination, International law, Sexual harassment

The claimant brought a claim of damages for unlawful termination of employment because she alleged she was terminated before her two-year contract had run despite a positive one-year evaluation.  She claimed her contract was not renewed because she made reports of sexual harassment by her supervisor to the police.  However, that report was made four months after the claimant was informed of the decision not to renew her contract.  The court also determined that her contract was a one-year contract.  As a result, her claim was dismissed.  However, the court “condemn[ed] in the strongest possible terms the exploitation and degradation of women by predatory male behavior in the workplace” and found that the respondent “has an obligation to not sweep these grave allegations under the rug.”  The court urged an investigation into the alleged conduct by claimant’s supervisor and for the respondent to “duly penalize such behavior if substantiated, in keeping with Belize’s national and international obligations to protect the rights of women and children from sexual exploitation under treaties such as the Convention on the Elimination of All Forms of Violence and Discrimination Against Women.”



Individual Application of Özlem Tuncel Kaya Constitutional Court (2016)

Domestic and intimate partner violence

The applicant, Ms. Kaya, applied to the Office of Public Prosecutor (the “OPP”), claiming that she had been the victim of domestic violence. After investigating, the OPP charged the applicant’s husband with domestic violence and went to trial. However, during the trial, the applicant withdrew her claim and said that the bruises she had submitted as evidence were actually the result of an accident at the couple’s home. The OPP dropped the charges against the applicant’s husband. Two years later, the applicant filed another claim with the OPP alleging that her husband stole her jewellery and again subjected her to domestic violence.  The OPP notified the proper Court of First Instance for Family Affairs (the “Court of First Instance”). The Court issued a restraining order against the husband that prevented him from approaching the applicant and ordered that he pay alimony to her for four months. The government offered the applicant state housing for the victims of domestic violence, but she rejected the offer. The applicant was subjected to several more incidents of domestic violence. During that time, the OPP requested the Court of First Instance to issue a warrant for the arrest of the applicant’s husband. The Court of First Instance rejected the OPP’s request. The applicant appealed, but her appeal was dismissed because Ms. Kaya’s statements alone were not adequate evidence of domestic abuse. After Ms. Kaya appealed, the Constitutional Court ruled that Turkey had a duty to take affirmative steps to prevent further acts of domestic violence against the appellant and effectively investigate her claims in this case. However, after applying the legal framework addressing victims of domestic violence, the Constitutional Court ruled that Ms. Kaya’s fundamental rights under the framework had not been infringed. This decision is important because it demonstrates that even though there is a legal framework available for women affected by domestic violence, claims against state officials for failing to act on their duties under that framework need to be specific and supported by substantial evidence.



Individual Application of Ferida Kaya Constitutional Court (2016)

Custodial violence, Gender-based violence in general

The applicant, Ms. Kaya, was arrested for alleged political offences. After she was released, she submitted a petition to the Office of Prosecutor General, asserting that she had been subjected to inhuman and degrading treatment while she was in custody. She also claimed that physicians at the state hospital ignored her complaints related to torture and inhuman treatment. After the incident, Ms. Kaya received asylum from Austria in 2002. Concurrently, the Office of Prosecutor General brought an action against the gendarmerie personnel and the physicians who ignored Ms. Kaya’s complaints to address her complaint regarding inhuman and degrading treatment. The trial at the Court of First Instance took about nine years. During that period, the claim against physician was dropped due to the lapse of time. Ms. Kaya was outside of Turkey during the trial. However, she remotely applied to several hospitals in Turkey to get consultations regarding the medical reports that were prepared while she was in custody. All of Ms. Kaya’s medical reports indicated that she showed signs of torture and inhuman treatment. She submitted those reports to the Court of First Instance. In 2011, the Court of First Instance dropped the case as a result of lapse of time. However, the Constitutional Court set aside the Court of First Instance’s decision and ruled that the prolonged trial violated Ms. Kaya’s right to access justice. The Constitutional Court held that Turkey must hold a speedy trial to abide by its constitutional obligation to effectively investigate claims related to torture and inhuman and degrading treatment. This case is important, because it concluded that an insufficient investigation may itself be inhuman treatment. This case should constitute a precedent for the future cases where women are harmed as a result of insufficient and ineffective investigation.



C.K. & 11 Others v. Commissioner of Police High Court of Kenya at Meru (2013)

Gender discrimination, International law, Statutory rape or defilement

The petitioners are eleven minors and the non-governmental organization that shelters, educates, and cares for the eleven minors. Each child claims to have been subjected to child abuse and defilement in Meru County, where police "neglected...or otherwise failed" to investigate or protect the children in any way.  The High Court of Kenya held that the police have a duty to investigate allegations of sexual abuse made by female complainants, stating that “by failing to enforce existing defilement laws, the police have contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity.”



International Case Law

G.N. v. Burundi Committee Against Torture (2017)

International law, Statutory rape or defilement

G.N., a mother, brought the action on behalf of her nine-year-old daughter, C.N.  A friend of the family, Captain D.K., was conducting night patrols and he stopped by the family home.  G.N.’s husband was not at home, so the Captain said he was going to leave and wanted to take C.N. with him home.  G.N. declined saying it was late, but when she returned to the kitchen to finish cooking the meal and then called for her daughter, she was no longer there.  Neighbors informed G.N. that she had left with D.K.  She looked for C.N., but did not see her.  The serviceman was a friend of the family.  She thought C.N. would soon return.  When G.N.’s husband returned home, she informed him that C.N. had not returned and he reassured her so they decided to wait.  C.N. returned home the next day.  G.N. eventually learned from C.N. that D.K. had taken her to his house, raped her, and, when she cried, threatened her with his firearm if she made any more noise.  He sent her to sleep with his own children and the next day gave her 500 Burundian francs (USD 0.30). He told her never to speak about the rape and threatened her and her mother if she revealed their secret.  However, a week after the incident, her mother persisted in asking C.N. because she could not stand up and said she had a stomach ache.  The victim’s father raised the issue with Captain D.K., who proposed an out of court settlement, which was rejected by G.N.  G.N. took C.N. for a medical examination, which confirmed the rape and she reported the rape to the military prosecutor’s department.  G.N. appealed to the domestic courts, which dismissed the case because of the ten-day period between the incident and reporting of it and the calmness and availability of the Captain.  After seeking domestic remedies with no action taken, G.N. appealed to the Committee submitting that her daughter was the victim of a violation of articles 2(1), 12, 13 and 14, read in conjunction with article 1 and, alternatively, with article 16 of the Convention.  The Committee found that the sexual abuse to which C.N. was subjected by an official of the State acting in his official capacity and the associated acts of intimidation fall within the scope of article 1 of the Convention.  The Committee also determined the investigation was not impartial, effective and prompt, contrary to articles 12 and 13 of the Convention.  It relied on the fact it was closed quickly and prosecutors did not seek additional evidence to pursue the case or arrest any other suspects, meaning the perpetrator of the rape has gone unpunished even though Burundi law provides that rape is punishable by life imprisonment when committed against a child under the age of 12.  As the child received no redress, the Committee also found that Burundi violated its obligations under article 14 of the Convention.  Finally, the Committee urged Burundi to: (1) promptly reopen an investigation; (2) provide reparation including compensation for the material and moral harm caused, restitution, rehabilitation, measures of satisfaction and a guarantee of non-repetition; (3) prevent threats/acts of violence against G.N. and C.N. for lodging the complaint; and (4) advise the Committee within 90 days of the steps taken. 



Abromchik v. Belarus Human Rights Committee (ICCPR) (2018)

Custodial violence, Gender discrimination, International law

Abromchik attended a peaceful assembly on 19 December 2010 with friends in Minsk following the announcement of presidential election results.  After the event, when she and her friends were stopped by a special unit of riot police and tried to escape, they were blocked and beaten.  An officer punched her on the leg with a rubber truncheon several times.  She realized she had a broken leg and told the police officer.  She was not taken to the hospital for several hours.  She made a complaint to the prosecutor of Minsk about the unlawful actions of the police.  She provided details about the incident and witnesses were questioned, but no other actions were taken to investigate the incident or to identify the police officer who had beaten her.  The prosecutor’s office suspended the investigation, stating that it was impossible to find those responsible.  The office resumed the investigation and then suspended it again on the same grounds.  In her appeal to the Committee, Abromchik claimed that she was physically assaulted and affected mentally in violation of article 7 of the Covenant because authorities wanted her to feel helpless and to victimize her and that her age and gender should be taken into account when assessing the gravity of the ill treatment.  She also noted that her complaint of ill-treatment was not investigated promptly and impartially by the authorities, contrary to article 7.  The Committee found that, in the absence of any information from Belarus that it undertook to address the allegations made, due weight must be given to the allegations.  On this basis, the Committee concluded that Belarus failed in its duty to adequately investigate the allegations made in violation of article 7, read in conjunction with article 2(3) of the covenant.  The Committee determined that Belarus was required to provide an effective remedy, including conducting a full investigation of the ill treatment in order to prosecute the perpetrators and to punish them with appropriate sanctions, providing adequate compensation, including reimbursement of legal and medical expenses and non-pecuniary losses, and issuing a formal apology to Abromchik.  Further, the Committee stated that Belarus was under an obligation to take necessary steps to prevent similar violations from occurring in the future.



O.G. v. Russian Federation CEDAW Committee (2017)

Domestic and intimate partner violence, International law

O.G. was in a civil partnership with K. who used drugs and alcohol and had a gambling addiction.  After O.G. left him, he sent her harassing texts, attempted to visit her, and when she refused to let him in her building, he hit her.  She reported the events to a Crisis Center for Women.  K. was sentenced to four months of labor which was suspended to a six-month probation and ordered to pay $50.  After his release, he continued to send texts to O.G. threatening to kill her.  She filed seven criminal complaints with the police, who took no action claiming there was nothing they could do because K. would not come to the police station and he was not acting on his threats.  O.G. filed a complaint with CEDAW alleging that the Russian Federation failed to fully implement the Convention by not introducing legislation on domestic violence, and that the authorities had violated her rights under the Convention by not responding adequately to her claims or implementing protective orders to ensure her safety, not providing any effective remedy or psychological support, not conducting meaningful investigation, and allowing prosecution to be time barred due to a two-year statute of limitation.  The Committee decided in O.G.’s favor, rejecting the Russian authority’s argument that O.G.’s claim to be a domestic violence victim was unsubstantiated because he was not a member of her family at the time of the alleged violence, finding that there is no statutory time limit on how long after the end of a relationship a partner can claim that violence falls within this definition.  The Committee determined that Russia had not adopted comprehensive legislation to prevent and address violence against women, and noted recent amendments to national legislation that decriminalized battery under which many domestic violence cases are prosecuted due to the absence of a definition of “domestic violence.”  This failure to amend legislation relating to domestic violence directly affected O.G.’s access to remedies and protection.  The Committee determined Russia violated O.G.’s rights under articles 1, 2 (b)-(g), 3 and 5 (a) of the Convention. It recommended that Russia provide financial compensation to O.G., adopt comprehensive legislation to prevent and address violence against women, including domestic violence, reinstate criminal prosecution of domestic violence, introduce a protocol for handling domestic violence complaints at the police station level to ensure adequate protection, renounce private prosecution in domestic violence cases, ratify the Istanbul Convention, provide mandatory training for judges, lawyers and law enforcement personnel on the Convention and related documents, investigate allegations of gender-based violence against women promptly and provide safe and prompt access to justice, provide rehabilitation programs to offenders, and develop and implement effective measures with relevant stakeholders such as women’s organizations, to address stereotypes and practices that condone or promote domestic violence.  A written response and report on actions taken was due to the Committee within six months. (Available in English, Russian, Arabic, Chinese, French, Spanish.)



Y. v. Slovenia European Court of Human Rights (2015)

International law, Sexual violence and rape, Statutory rape or defilement

Applicant is a citizen of Ukraine who came to Slovenia as a teenager with her family.  Applicant alleged that when she was 14 a family friend repeatedly sexually assaulted her.  The police investigated and an expert in gynecology examined the applicant.  After complaints and a letter from the State Prosecutor’s Office to the local police a criminal complaint was issued.  The ensuing investigation and trial extended over a period of eight years.  During that time the defendant was allowed to repeatedly cross examine the applicant.  Moreover, a lawyer with whom the applicant had shared confidential information about the case was allowed to represent the defendant.  The defendant was acquitted, the applicant was referred to civil court for damages, and the applicant received a settlement from the government for the undue delays in the proceedings.  The Court found that Slovenia violated the European Convention of Human Rights in two ways.  Slovenia violated Article 3 when it failed to promptly investigate and prosecute the complaint of sexual abuse.  Furthermore, Slovenia violated Article 8 because it failed to sufficiently protect the applicant’s personal integrity and privacy in the proceedings.



Case of W. v. Slovenia European Court of Human Rights (2014)

International law, Sexual violence and rape

In 1990 at age 18, W. was raped by a group of seven men.  Three other men aided and abetted the rape.  Seven months later, the court acquitted the men of all charges, finding that the victim had not “seriously resisted sexual intercourse.”  The Public Prosecutor appealed the judgement and in 1991, a year after the assault, the appellate court overturned the acquittal.  The Slovenian authorities attempted to locate the perpetrators, but two defendants had emigrated to Austria and could not be found.  Between 1995 and 2001, the victim wrote eight letters to the court urging the proceedings to continue and five hearings were adjourned for failure of some of the defendants to appear.  Various excuses, such as frequent changes in the presiding judges, were offered to the victim as excuses for the stalled proceedings.  Finally, in May 2001, the authorities issued an international arrest warrant for the defendants located abroad.  In June 2002, six defendants were found guilty of rape and aggravated rape.  However, due to the passage of time, they were only sentenced to eight months to one year of prison.  The last defendant was extradited in 2004, convicted of aiding and abetting the rape, and sentenced to eight months in prison.  The victim received €5,000 from the Slovenian government in recognition of delay in prosecuting the defendants; however, the European Court of Human Rights (ECtHR) found that this amount (while the statutory maximum in Slovenia) was insufficient redress.  The ECtHR noted that Slovenian authorities failed to proceed with the case in a diligent manner and that the defendants received prison sentences of less than the minimum sentences prescribed by law.  Thus, the domestic authorities failed to comply with their obligations under Article 3 of the European Convention of Human Rights.  The ECHR, deciding in equity, awarded the victim €15,000 in addition to the €5,000 she received from the domestic authorities.



Case of Bălşan v. Romania European Court of Human Rights (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

Applicant is a Romanian citizen who alleged that her husband had been violent towards her and their children on numerous occasions.  The assaults intensified when the applicant initiated divorce proceedings against her husband.  The applicant’s husband assaulted and threatened her on multiple occasions, for which she required and obtained medical treatment.  She then used her medical records as proof when she lodged formal complaints against her husband at the prosecutor’s office.  She told prosecutors of the incidences of violence and the fact that her husband repeatedly locked her out of their shared residence.  The police did not pursue criminal charges and only imposed an administrative fine, holding that the applicant had provoked the disputes.  A similar pattern of abuse, medical attention, and contact with the authorities occurred over a period of months.  The applicant brought the case to the European Court of Human Rights alleging that the State “had failed to protect her from domestic violence and to hold the perpetrator accountable.”  The Court found that there were violations of Article 3 and Article 14 of the European Convention on Human Rights, which forbid torture and discrimination, respectively.  The Court found that the authorities were aware of the violence against the applicant, and thus they had an obligation to act on the complaints.  The applicant exhausted domestic avenues, but without success.  The state’s responses did not comply with international standards about required state action to violence against women and domestic violence. (Available in English, Romanian, and Croatian. English version is official.)



Legislation

Regulation/Perkap No. 10/2007 on the Organisation and Work of the Woman and Children Service Units (2007)

Domestic and intimate partner violence, Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Woman and Child Service Units (UPPA) handle all cases of violence against women, including human trafficking, domestic violence, sexual violence, and other related crimes, in all 305 Indonesian units. UPPA’s units range from district police levels and up. Ideally the Integrated Services for Women and Children Units (P2TP2A) should handle not only cases of violence, but also should serve as centers where women can go for information and empowerment.